B-136204, JUN. 2, 1958

B-136204: Jun 2, 1958

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MAY 7. YOUR BID WAS ACCEPTED BY THE GOVERNMENT BY THE ISSUANCE OF THE CITED PURCHASE ORDER. THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF YOUR BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD. NEITHER IS THERE ANY SHOWING THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF A PROBABLE MISTAKE IN BID PRIOR TO THE ACCEPTANCE OF SUCH BID. IT FURTHER APPEARS THAT THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH. VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT IS AUTHORIZED TO WAIVE OR RELEASE.

B-136204, JUN. 2, 1958

TO AATELL AND JONES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 5, 1958, WHICH DISALLOWED YOUR CLAIM FOR $16.20, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE ON ITEMS 9 TO 12 OF A CONTRACT CONSISTING OF YOUR OFFER OF DECEMBER 12, 1957, AS ACCEPTED BY THE VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, IN THE ISSUANCE OF PURCHASE ORDER NO. 1724, DATED DECEMBER 17, 1957.

THE RECORD INDICATES THAT IN RESPONSE TO AN INVITATION TO BID YOU OFFERED TO FURNISH, AMONG OTHER THINGS, UNDER ITEMS 9 TO 12, FOUR LOTS OF NAPKINS (5 PACKAGES, 250 TO A BOX) AT $2.70 FOR EACH LOT. YOUR BID WAS ACCEPTED BY THE GOVERNMENT BY THE ISSUANCE OF THE CITED PURCHASE ORDER, REQUESTING YOU TO DELIVER THE SUPPLIES ON OR BEFORE JANUARY 30, 1958.

IT APPEARS THAT AFTER AWARD AND PRIOR TO SHIPPING THE SUPPLIES YOU ADVISED THE CONTRACTING OFFICER OF AN ERROR IN THE PRICES YOU QUOTED FOR ITEMS 9 TO 12 IN THE WRITTEN QUOTATION IN THAT YOU QUOTED ON 500 NAPKINS INSTEAD OF FIVE PACKAGES OF 250 EACH. THE CONTRACTING OFFICER REQUESTED YOU TO PERFORM PURSUANT TO THE PURCHASE ORDER AND TO SUBMIT A SEPARATE BILL FOR THE AMOUNT DUE TO COMPENSATE FOR THE ERROR.

THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF YOUR BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD. NEITHER IS THERE ANY SHOWING THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF A PROBABLE MISTAKE IN BID PRIOR TO THE ACCEPTANCE OF SUCH BID.

IT FURTHER APPEARS THAT THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL PRIOR TO SHIPPING OF THE SUPPLIES. THE ACCEPTANCE OF YOUR BID UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO, AND VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT IS AUTHORIZED TO WAIVE OR RELEASE. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT, AND THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THEREFORE, IF YOU SUBMITTED A BID BASED UPON AN ERRONEOUS QUOTATION YOU MUST ASSUME THE CONSEQUENCES THEREOF.

SUCH ERROR AS WAS MADE WAS DUE SOLELY TO YOUR OWN NEGLIGENCE, AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. HENCE, THE ERROR WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

FOR THE REASONS STATED, THE SETTLEMENT OF MAY 5, 1958, IS SUSTAINED.